{ "id": 50271, "name": "Christine M. JONES v. Jerry A. JONES", "name_abbreviation": "Jones v. Jones", "decision_date": "1997-04-07", "docket_number": "97-212", "first_page": "97", "last_page": "103", "citations": [ { "type": "official", "cite": "328 Ark. 97" }, { "type": "parallel", "cite": "940 S.W.2d 881" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "761 S.W.2d 933", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1891457, 1891349 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0370-01", "/ark/297/0368-01" ] }, { "cite": "297 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891457 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ark/297/0370-01" ] }, { "cite": "266 Ark. 556", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720825 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ark/266/0556-01" ] }, { "cite": "326 Ark. 1134", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "309 Ark. 190", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906071 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0190-01" ] }, { "cite": "326 Ark. 828", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12025148 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/326/0828-01" ] }, { "cite": "326 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023229 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/ark/326/0481-01" ] }, { "cite": "240 Ark. 634", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1727445 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "635-36" }, { "page": "753", "parenthetical": "emphasis added" } ], "opinion_index": 1, "case_paths": [ "/ark/240/0634-01" ] }, { "cite": "761 S.W.2d 933", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1891457, 1891349 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/297/0370-01", "/ark/297/0368-01" ] }, { "cite": "297 Ark. 370", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1891457 ], "year": 1988, "opinion_index": 1, "case_paths": [ "/ark/297/0370-01" ] }, { "cite": "326 Ark. 481", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 12023229 ], "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "Jones I" }, { "parenthetical": "Jones I" }, { "page": "774" } ], "opinion_index": 1, "case_paths": [ "/ark/326/0481-01" ] } ], "analysis": { "cardinality": 609, "char_count": 11533, "ocr_confidence": 0.756, "pagerank": { "raw": 1.80813107238796e-07, "percentile": 0.7174003194780854 }, "sha256": "29ea6bc719583ec259cc76aceaf23ba8a36a64e5fb8aaaa7e3f2fce674c4c3d4", "simhash": "1:b3a8b3e5240216ce", "word_count": 1893 }, "last_updated": "2023-07-14T15:26:32.867281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., concurs." ], "parties": [ "Christine M. JONES v. Jerry A. JONES" ], "opinions": [ { "text": "Per Curiam.\nOn November 4, 1996, this court held that the chancellor erred in finding material changes in circumstances existed that warranted the modification of the parties initial custody order. We reversed the chancellor\u2019s order changing custody of the parties\u2019 child to Dr. Jones and remanded with instructions to reinstate the original custody order which awarded Christine Jones custody of the child. See Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). The court\u2019s mandate in Jones was issued on November 22, 1996, but for some reason, the chancery court delayed reinstating the original custody order, prompting Ms. Jones\u2019s filing a petition on December 12, 1996, requesting enforcement of this court\u2019s mandate. On December 13, 1996, we issued a per curiam directing the chancery court to reinstate the original custody order forthwith. Jones v. Jones, 326 Ark. 828, 933 S.W.2d 810 (1996). The chancery judge reinstated the order.\nSubsequently, the parties entered a consent order establishing certain, but not all, visitation rights sought by Dr. Jones. A hearing on the disputed visitation matters was held on February 11, 1997. However, before the February 11 hearing commenced, Dr. Jones filed a petition for change of custody and served it on Ms. Jones. The petition largely rehashed the custody-dispute history between the parties beginning in the early 1990\u2019s to this court\u2019s decisions on November 4, 1996, and December 13, 1996. Dr. Jones\u2019s petition added the following:\nThat since custody has been reinstated to the [Ms. Jones] as per the original custody order, [Dr. Jones] has attempted to contact the minor child by telephone, to no avail on many occasions. When Dr. Jones does reach the child, the child acts totally out of character in the conversation either by being reluctant to talk with Dr. Jones or simply putting the telephone down.\nDr. Jones\u2019s petition concluded, asking for his petition to be heard by a judge who will apply the proper standard of proof so the minor child\u2019s best interest will be addressed and Dr. Jones would be afforded due process. He further asked that a neutral expert and attorney ad litem be appointed and that Ms. Jones\u2019s mental health and stability be addressed.\nDuring the February 11, 1997 visitation hearing, Ms. Jones asserted the chancellor revealed that he had already set a hearing to consider Dr. Jones\u2019s custody petition. Ms. Jones also complained that, during the visitation hearing, Dr. Jones\u2019s expert witness, Dr. Becky Porter, was permitted to testify at the visitation hearing to opinions she had formed and related at the parties\u2019 earlier custody proceeding. While the chancellor indicated he did not want to go through and rehash everything right now (\u201cWe\u2019ll have to do that at some point in the future\u201d), the chancellor permitted Porter to opine her views on the parties\u2019 child and Ms. Jones\u2019s instability.\nMs. Jones brings this petition for writ of prohibition, stating that the chancery court is wholly without jurisdiction to rehear the custody issue already decided by this court. She further argues that the chancery court has no power to redetermine the \u201cemotional needs\u201d issue previously decided. Basically, she suggests that Dr. Jones intends to retry and appeal the same custody issue a third time.\nDr. Jones responds, asserting that whatever errors this court found occurred at the parties\u2019 last (and second) custody hearing resulted from the chancellor\u2019s actions, not Dr. Jones\u2019s. He says he should not be punished because the chancellor erred in improperly imposing the burden of proof on Ms. Jones and that he should now be allowed to have a chancellor correctly address the \u201cemotional needs\u201d and \u201cbest interests\u201d of the child issues not correctly tried by the prior chancellor. Finally, Dr. Jones cites Earney v. Brantley, 309 Ark. 190, 828 S.W.2d 832 (1992), for the proposition that res judicata is an affirmative defense to be raised in the trial court and presents no question of jurisdiction. Further, absent a showing that the trial court is acting without or in excess of its jurisdiction, Dr. Jones claims a writ of prohibition may not be granted.\nWe agree with Dr. Jones that Earney controls here and that Ms. Jones\u2019s remedies must be sought below. We add that Rule 11 sanctions may also be requested at trial and now on appeal if the attorney or party initiates a frivolous proceeding or appeal in violation of the dictates of those rules. See ARCP Rule 11 and Ark. R. App. P. \u2014 Civil 11 (326 Ark. 1134).\nWhile we deny Ms. Jones\u2019s petition, we are obliged to underscore certain matters contained in this court\u2019s previous decision handed down on November 6, 1996, especially since this court had to take the extraordinary step to enforce its mandate by a subsequent per curiam. That per curiam was necessary because, for whatever reason, the chancery court failed to reinstate the parties\u2019 original custody order. Because we believed that this court\u2019s opinion and instructions were perfectly clear, we issued a simple \u201cforthwith\u201d order directing the chancery court\u2019s compliance. The chancery court then complied.\nBecause of the continuing controversies involving this matter, we reiterate the well-established rule that when this court remands a case to chancery court with directions, the chancery court has no power to enter any decree except that directed, and it has no power to change or extend this court\u2019s mandate. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). In this same vein, we remind the parties that, in the appeal decided November 4, 1996, this court conducted a de novo review of the chancellor\u2019s custody decision, and in doing so, the court specifically stated that child custody is determined by what is in the \u201cbest interests\u201d of the child, and it is not altered absent a material change in circumstances. In deciding the child custody issue, this court reviewed in lengthy detail the evidence offered at trial, including Ms. Jones\u2019s move to Little Rock, Dr. Jones\u2019s remarriage, and the child\u2019s emotional needs. In considering the child\u2019s emotional needs, the opinion related the competing views and opinions of four expert witnesses, concerning Ms. Jones\u2019s mental and emotional stability. After a full discussion of the parties\u2019 respective evidence, this court concluded as follows:\nIn sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chancellor\u2019s faulty reliance on her move to Litde Rock and Dr. Jones\u2019s remarriage as material changes in circumstances, we must conclude that the chancellor\u2019s decision to change custody to Dr. Jones was clearly erroneous.\nSimply put, this court held the chancellor was clearly wrong in ruling Dr. Jones had proven that a material change of circumstances existed, and a transfer in custody was warranted.\nOur reasons for requiring more stringent standards for modifications than for initial determinations of custody are to promote stability and continuity in the fife of the child, and to discourage the repeated litigation of the same issues. As one commentator has recognized, the improper use of custody proceedings is more likely if parents are allowed to relitigate their relative fitness without the addition of significant new facts. Jeff Atkinson, Modern Child Custody Practice, \u00a7 9.02 at 452 (1986).\nHaving given the foregoing salutary statements, we remain of the opinion that evidence regarding Dr. Jones\u2019s petition for modification must first be appropriately addressed below. In deciding the modification question, we emphasize that the chancellor should only consider facts arising since the last custody order, or evidence that has not been previously presented to the chancellor. See Jones, 326 Ark. at 491; Stamps v. Rowlins, 297 Ark. 370, 761 S.W.2d 933 (1988). We deny Ms. Jones\u2019s petition.\nBrown, J., concurs.\nWe note that, while the concurring opinion suggests this court did not consider the parties\u2019 child\u2019s emotional needs, the court thoroughly dealt with this issue in its original opinion under the caption \u201cCameron\u2019s emotional needs.\u201d See Jones, 326 Ark. at 491, 931 S.W.2d at 772.", "type": "majority", "author": "Per Curiam." }, { "text": "Robert L. Brown, Justice,\nconcurring. While I certainly agree that the writ of prohibition should be denied, I disagree with that part of the per curiam opinion that holds that Jerry Jones is limited in arguing his son\u2019s emotional needs as a reason to change custody. This court did not reach the merits of that issue in Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996) (Jones I). Rather, we decided the emotional-needs issue based on faulty and improper procedure, that is, the chancellor wrongfuEy shifted the burden of proof in the custody matter to Christine Jones and engaged in ex parte communications with mental health experts for Jerry Jones. We held in Jones I:\nIn sum, when viewing together the repeated entry of ex parte orders, the erroneous shift of the burden to Christine Jones to prove her emotional stability, and the chanceUor\u2019s faulty reliance on her move to Lit\u00fce Rock and Dr. Jones\u2019s remarriage as material changes in circumstances, we must conclude that the chancellor\u2019s decision to change custody to Dr. Jones was clearly erroneous.\nJones, 326 Ark. at 494, 931 S.W.2d at 774. Thus, on de novo review, this court took a clear position on the merits with respect to Christine Jones\u2019s move to Little Rock and Jerry Jones\u2019s remarriage. We did not do so with respect to the issue of the boy\u2019s emotional needs but pointed to the procedural deficiencies.\nThe per curiam opinion is correct in asserting that repeated litigation of the same issues between former spouses does not promote stab\u00fcity and continuity in the life of the minor chEd. This policy is adeptly promoted by this court\u2019s rule that custody should be modified only when there are changed circumstances since the last award of custody or when there is proof affecting the best interests of the chEd that was not previously known by the chanceEor. See Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). However, in holding that this court\u2019s reinstatement of custody in Christine Jones forecloses evidence pertinent to the chEd\u2019s emotional needs that occurred prior to Jones I, the majority hamstrings Jerry Jones and prevents him from presenting any history on this matter. He should not be penalized by wrongful procedures employed by the trial court.\nOn de novo review, this court has been clear that we decide matters on the merits. Fye v. Tubbs, 240 Ark. 634, 401 S.W.2d 752 (1966). In Fye, which was a child custody dispute, Justice George Rose Smith wrote:\nAt the hearing in the court below both parties developed their testimony fully. More than a dozen witnesses testified. There is no reason to think that a second hearing is needed. It is appropriate for us to try the matter de novo, as is our practice in equity, and reach a decision upon the merits.\nFye, 240 Ark. at 635-36, 401 S.W.2d at 753 (emphasis added).\nBecause there has been no final decision since the original decree vesting custody in Christine Jones on whether Cameron\u2019s emotional needs mandate a change in custody, Jerry Jones should be allowed to fully develop the issue. The per curiam opinion truncates his ability to do so.", "type": "concurrence", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "McNutt Law Firm, by: Mona J. McNutt, for petitioner.", "Lueken Law Firm, by: Patty J. Lueken, and Helen Rice Grinder, for respondent." ], "corrections": "", "head_matter": "Christine M. JONES v. Jerry A. JONES\n97-212\n940 S.W.2d 881\nSupreme Court of Arkansas\nOpinion delivered April 7, 1997\nMcNutt Law Firm, by: Mona J. McNutt, for petitioner.\nLueken Law Firm, by: Patty J. Lueken, and Helen Rice Grinder, for respondent." }, "file_name": "0097-01", "first_page_order": 123, "last_page_order": 129 }